Present: All the Justices
PATRICK R. GRAY, ET AL.
v. Record No. 071220 OPINION BY JUSTICE CYNTHIA D. KINSER
June 6, 2008
VIRGINIA SECRETARY OF
TRANSPORTATION, ET AL.
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
This appeal involves a constitutional challenge to
certain contractual agreements between the Commonwealth of
Virginia and the Metropolitan Washington Airports Authority
concerning the Dulles Toll Road. The sole issue is whether
the circuit court erred in sustaining demurrers and pleas in
bar asserting sovereign immunity. Because we conclude that
certain constitutional provisions are self-executing and
thus waive the Commonwealth’s sovereign immunity, we will
reverse in part the circuit court’s judgment.
A. Standard of Review
“ ‘Where no evidence is taken in support of a plea in
bar, the trial court, and the appellate court upon review,
consider solely the pleadings in resolving the issue
presented.’ ” Niese v. City of Alexandria, 264 Va. 230,
233, 564 S.E.2d 127, 129 (2002) (quoting Lostrangio v.
Laingford, 261 Va. 495, 497, 544 S.E.2d 357, 358 (2001)).
“The facts as stated in the pleadings by the plaintiff are
taken as true for the purpose of resolving the special
plea.” Id. (citing Lostrangio, 261 Va. at 497, 544 S.E.2d
at 358). “The existence of sovereign immunity is a question
of law that is reviewed de novo.” City of Chesapeake v.
Cunningham, 268 Va. 624, 633, 604 S.E.2d 420, 426 (2004).
B. The Parties 1
The appellants, Patrick R. Gray and James W. Nagle, are
both residents of Fairfax County and allege that they are
frequent users of the Dulles Toll Road. The appellees
include several entities and officials of the Commonwealth:
the Commonwealth Transportation Board, the Virginia
Department of Transportation (VDOT), the Virginia Secretary
of Transportation, and the Virginia Commissioner of
Transportation. For purposes of this opinion, we will refer
to these appellees as “the Commonwealth Defendants.”
The Metropolitan Washington Airports Authority (MWAA)
is also an appellee. The MWAA is a regional public entity
established by an interstate compact, which was approved by
the United States Congress in 1986. See 49 U.S.C. § 49101
et seq. The General Assembly and the City Council of the
1
Because the circuit court decided this case upon
demurrers and special pleas in bar of sovereign
immunity without an evidentiary hearing, we will recite
the facts as alleged in the pleadings. McMillion v.
Dryvit Systems, Inc., 262 Va. 463, 465, 552 S.E.2d 364,
365 (2001).
2
District of Columbia enacted legislation to establish the
MWAA. Code § 5.1-152 et seq.; D.C. Code § 9-901 et seq.
According to Code § 5.1-153, the MWAA is “a public body
corporate and politic and independent of all other bodies,”
see also 42 U.S.C. § 49106(a)(2); D.C. Code § 9-902, created
for the purpose of “acquiring, operating, maintaining,
developing, promoting and protecting Ronald Reagan
Washington National Airport and Washington Dulles
International Airport.” Code § 5.1-156.
C. Historical Background
On September 7, 1950, the United States Congress
enacted legislation authorizing “the construction,
protection, operation, and maintenance of a public airport
in or in the vicinity of the District of Columbia.” Pub. L.
81-762, 64 Stat. 770. Construction for the airport
commenced in 1958, and the airport was dedicated on November
17, 1962, as Dulles International Airport. In 1984, it was
renamed Washington Dulles International Airport (Dulles
Airport). As part of the overall project, the Dulles
Airport Access Highway (DAAH) was constructed to connect the
airport to Interstate 495 (the Beltway) and Interstate 66.
The entire road is limited to airport traffic only and has
no exits west of the Beltway, other than direct access to
the airport. Due to public demand for local access routes
3
off of the DAAH, the United States Department of
Transportation and the Director of the then existing
Metropolitan Washington Airports entered into an agreement
with the Commonwealth, dated July 6, 1981 (“the 1981
Agreement”), to construct a new road in the existing right-
of-way for the DAAH. This new road, which has access for
local traffic, is known as the Dulles Toll Road. VDOT
constructed the Dulles Toll Road in the early 1980’s and has
maintained and operated the highway since it was opened to
public use. By deed of easement dated January 9, 1990, the
MWAA conveyed to the Commonwealth the right to use
additional land within the DAAH right-of-way to widen the
Dulles Toll Road.
On March 24, 2006, the Secretary of Transportation
executed a Memorandum of Understanding (MOU) between the
Commonwealth of Virginia and the MWAA concerning the Dulles
Corridor Metrorail Project 2 (Metrorail Project) and the
Dulles Toll Road. The MOU recites that the Dulles Toll Road
was “constructed upon property owned by the federal
government and leased to [the MWAA], pursuant to several
deeds of easement to the Commonwealth of Virginia for the
construction of the Dulles Toll Road.” In the MOU, the
2
The Metrorail Project is for the purpose of expanding
the existing metrorail system to Dulles Airport.
4
parties agreed that the Commonwealth, acting through VDOT
and the Commonwealth Transportation Board, “will transfer
possession and control over the Dulles Toll Road right-of-
way and all improvements thereto to the [MWAA],” that the
MWAA will assume all operational, maintenance, toll-setting,
toll-collection, debt, and financial responsibility for the
Dulles Toll Road, and that the MWAA will construct certain
phases of the Metrorail Project. Pursuant to the MOU, the
Commonwealth agreed to transfer to the MWAA funds dedicated
for the design and construction of the Metrorail Project and
revenues collected from operation of the Dulles Toll Road.
Finally, the MOU provides that “[r]evenues collected from
the Dulles Toll Road shall be used for any and all costs
related to the operation, maintenance and debt service of
the Dulles Toll Road, and the design, construction and
financing of the Dulles Corridor Metrorail Project.”
On December 29, 2006, the VDOT and the MWAA entered
into the first of several agreements contemplated by the
MOU. Among other things, the agreement transferred to the
MWAA the authority to set toll rates for the Dulles Toll
Road.
D. The Controversy
On January 11, 2007, Gray and Nagle (the Plaintiffs)
filed a complaint against the Commonwealth Defendants and
5
the MWAA seeking declaratory and injunctive relief. The
Plaintiffs asserted that, without prior authorization from
the General Assembly, the Commonwealth Defendants lacked the
authority “to convey or transfer valuable Dulles Toll Road
assets . . . to MWAA[; and] to delegate or assign to MWAA
the responsibility and authority to direct and supervise the
operation and maintenance of the Dulles Toll Road,” and to
“fix[] and collect[] tolls on the Dulles Toll Road.” The
Plaintiffs further alleged that “[t]he contracting away,
transfer, delegation or assignment . . . of taxing power to
MWAA pursuant to the December 29, 2006, Agreement [was] an
ultra vires act and violates the Constitution of Virginia.”
They asserted that the power to tax, or in this case,
collect tolls, is vested in the General Assembly and that
this power may only be delegated “to the governing bodies of
counties, cities, towns and regional governments.” In
support of their position, the Plaintiffs cited Article IV,
Section 1 and Article VII, Sections 2, 3, and 7 of the
Constitution of Virginia. The Plaintiffs requested that the
circuit court declare the MOU and the December 29, 2006
Agreement “illegal and invalid” and enjoin the
implementation of both agreements.
The Commonwealth Defendants and the MWAA responded by
filing demurrers and pleas in bar asserting, among other
6
things, that the plaintiffs’ claims are barred by the
doctrine of sovereign immunity and that the circuit court,
therefore, lacked jurisdiction to hear the action. In their
memorandum opposing the demurrers and pleas in bar, the
Plaintiffs argued that their complaint alleged not only
“violations of the separation of powers clauses of the
Virginia Constitution (Article I, [Section] 5 and Article
III, [Section] 1)” but also a violation of Article IV,
Section 1 pertaining to the delegation of the General
Assembly’s taxing power. The Plaintiffs claimed that these
provisions of the Virginia Constitution are self-executing
and thus constitute a waiver of the Commonwealth’s sovereign
immunity.
The circuit court sustained the demurrers and pleas in
bar and dismissed the complaint. In a letter opinion, which
the circuit court incorporated into its final order, the
court characterized the Plaintiffs’ claims as being rooted
in Article IV, Section 1, and Article VII, Sections 2, 3,
and 7 of the Virginia Constitution. The circuit court also
referenced “the separation of powers clauses of the Virginia
Constitution” cited in the Plaintiffs’ memorandum in
opposition to the pleas in bar, i.e., Article I, Section 5
and Article III, Section 1. The circuit court concluded
7
that these provisions are not self-executing and thus do not
constitute a waiver of sovereign immunity. 3
On appeal to this Court, the Plaintiffs assert
essentially the same argument as they presented in the
circuit court. They contend that the “doctrine [of
sovereign immunity] does not bar claims grounded in self-
executing provisions of the Constitution.” Contrary to the
circuit court’s holding, the Plaintiffs assert that Article
I, Section 5, Article III, Section I, and Article IV,
Section 1 of the Virginia Constitution are self-executing
provisions and that their claims alleging violations of
these constitutional provisions are therefore not barred by
the doctrine of sovereign immunity. 4
E. Analysis
3
The circuit court also concluded that the doctrine of
sovereign immunity applies to the MWAA. The court found
that the MWAA should be treated like a municipality and was
performing a governmental function for which it is immune.
Alternatively, the court concluded that because the MWAA was
in privity of contract with the Commonwealth under the
December 29, 2006 Agreement, it shared in the Commonwealth’s
immunity. On appeal to this Court, the Plaintiffs do not
assign error to these rulings; therefore, they will not be
reviewed on appeal. Rule 5:17(c).
4
The Plaintiffs do not discuss Article VII, Sections
2, 3, and 7. Thus, we will not consider those
constitutional provisions in our analysis. See Rule 5:27;
Elliott v. Commonwealth, 267 Va. 396, 422, 593 S.E.2d 270,
286 (2004) (failure to brief an assignment of error
constitutes a waiver of the argument).
8
“[T]he doctrine of sovereign immunity is ‘alive and
well’ in Virginia.” Messina v. Burden, 228 Va. 301, 307,
321 S.E.2d 657, 660 (1984). “It is an established principle
of sovereignty, in all civilized nations, that a sovereign
State cannot be sued in its own courts . . . without its
consent and permission.” Board of Public Works v. Gannt, 76
Va. 455, 461 (1882). “One of the most often repeated
explanations for the rule of state immunity from suits in
tort is the necessity to protect the public purse.”
Messina, 228 Va. at 307, 321 S.E.2d at 660. “[W]hile
maintenance of public funds is important, another equally
important purpose of the rule is the orderly administration
of government.” Id. at 308, 321 S.E.2d at 660. Sovereign
immunity is “a rule of social policy, which protects the
state from burdensome interference with the performance of
its governmental functions and preserves its control over
state funds, property, and instrumentalities.” Hinchey v.
Ogden, 226 Va. 234, 240, 307 S.E.2d 891, 894 (1983). The
doctrine also serves in “preventing citizens from improperly
influencing the conduct of governmental affairs through the
threat or use of vexatious litigation.” Messina, 228 Va. at
308, 321 S.E.2d at 660; accord Afzall v. Commonwealth, 273
Va. 226, 231, 639 S.E.2d 279, 282 (2007).
9
Thus, “as a general rule, the sovereign is immune not
only from actions at law for damages but also from suits in
equity to restrain the government from acting or to compel
it to act.” Hinchey, 226 Va. at 239-40, 307 S.E.2d at 894
(citing Larson v. Domestic & Foreign Corp., 337 U.S. 682
(1949)). “Sovereign immunity may also bar a declaratory
judgment proceeding against the Commonwealth.” Afzall, 273
Va. at 231, 639 S.E.2d at 282. And because the Commonwealth
can act only through individuals, the doctrine applies not
only to the state, but also to certain government officials.
Messina, 228 Va. at 308, 321 S.E.2d at 661. “[H]igh level
governmental officials have generally been accorded absolute
immunity.” Id. at 309, 321 S.E.2d at 661, accord Alliance
to Save the Mattaponi v. Commonwealth, 270 Va. 423, 455, 621
S.E.2d 78, 96 (2005).
The Commonwealth, however, can waive sovereign immunity
and consent to being sued in its own courts. See, e.g.,
Rector & Visitors of the Univ. of Va. v. Carter, 267 Va.
242, 244, 591 S.E.2d 76, 78 (2004). “Only the General
Assembly, acting in its capacity of making social policy,
can abrogate the Commonwealth’s sovereign immunity.”
Alliance, 270 Va. at 455, 621 S.E.2d at 96 (citing
Commonwealth v. Luzik, 259 Va. 198, 206, 524 S.E.2d 871, 876
(2000)). “The Commonwealth and its agencies are immune from
10
liability . . . in the absence of an express constitutional
or statutory waiver of sovereign immunity.” Billups v.
Carter, 268 Va. 701, 707, 604 S.E.2d 414, 418 (2004). “A
waiver of sovereign immunity will not be implied from
general statutory language but must be explicitly and
expressly stated in the statute.” Alliance, 270 Va. at 455,
524 S.E.2d at 871 (citing Hinchey, 226 Va. at 241, 307
S.E.2d at 895).
The Plaintiffs acknowledged during oral argument before
this Court that if the constitutional provisions upon which
they rely, Article I, Section 5; Article III, Section 1; and
Article IV, Section 1, are not self-executing, then their
claims alleged in this action are barred by the doctrine of
sovereign immunity. Thus, the dispositive issue before us
is whether these constitutional provisions are self-
executing. 5
5
The Plaintiffs’ standing to bring this action was not
challenged in the circuit court and thus is not a question
before this Court. See Martin v. Ziherl, 269 Va. 35, 39,
607 S.E.2d 367, 368 (2005) (failure to raise challenge to
standing at trial level precludes this Court from
considering the issue on appeal). We reiterate, however,
that “[t]he point of standing is to ensure that the person
who asserts a position has a substantial legal right to do
so and that his rights will be affected by the disposition
of the case.” Cupp v. Board of Supervisors of Fairfax
County, 227 Va. 580, 589, 318 S.E.2d 407, 411 (1984).
“Thus, it is not sufficient that the sole interest of [a]
petitioner is to advance some perceived public right or to
redress some anticipated public injury when the only wrong
11
We begin our analysis by examining the constitutional
provisions at issue. Article I, Section 5 provides in
relevant part: “That the legislative, executive, and
judicial departments of the Commonwealth should be separate
and distinct.” Va. Const. art. I, § 5. Article III,
Section 1 states in relevant part: “The legislative,
executive, and judicial departments shall be separate and
distinct, so that none exercise the powers properly
belonging to the others, nor any person exercise the power
of more than one of them at the same time.” Va. Const. art.
III, § 1. And, Article IV, Section 1 of the Constitution of
Virginia provides, in its entirety: “The legislative power
of the Commonwealth shall be vested in a General Assembly,
which shall consist of a Senate and House of Delegates.”
Va. Const. art. IV, § 1.
If a constitutional provision is self-executing, no
further legislation is required to make it operative. Gill
v. Nickels, 197 Va. 123, 129, 87 S.E.2d 806, 810 (1955);
City of Newport News v. Woodward, 104 Va. 58, 60, 51 S.E.
193, 193 (1905); see also Black’s Law Dictionary 1391 (8th
ed. 2004) (defining the term “self-executing” as “effective
he has suffered is in common with other persons similarly
situated. Virginia Beach Beautification Comm’n v. Board of
Zoning Appeals, 231 Va. 415, 419, 344 S.E.2d 899, 902
(1986).
12
immediately without the need of any type of implementing
action”). In Robb v. Shockoe Slip Foundation, 228 Va. 678,
324 S.E.2d 674 (1985), we explained how to determine whether
a constitutional provision is self-executing:
A constitutional provision is self-executing
when it expressly so declares. See, e.g., Va.
Const. art. I, § 8. Even without benefit of such
a declaration, constitutional provisions in bills
of rights and those merely declaratory of common
law are usually considered self-executing. The
same is true of provisions which specifically
prohibit particular conduct. Provisions of a
Constitution of a negative character are
generally, if not universally, construed to be
self-executing. . . .
. . . .
A constitutional provision may be said to be
self-executing if it supplies a sufficient rule by
means of which the right given may be employed and
protected, or the duty imposed may be enforced;
and it is not self-executing when it merely
indicates principles, without laying down rules by
means of which those principles may be given the
force of law.
Id. at 681-82, 324 S.E.2d at 676 (citations and quotations
omitted).
As the Plaintiffs point out, this Court has held in a
long line of cases that the Virginia constitutional
provision prohibiting the General Assembly from enacting any
law whereby private property is taken or damaged for public
uses without just compensation (currently found in Article
I, Section 11) is self-executing and that a landowner may
13
enforce the constitutional right to just compensation in a
common law action. Kitchen v. City of Newport News, 275 Va.
378, 393, 657 S.E.2d 132, 140 (2008); Burns v. Board of
Supervisors of Fairfax County, 218 Va. 625, 627, 238 S.E.2d
823, 825 (1977) (citing Heldt v. Elizabeth River Tunnel
Dist., 196 Va. 477, 482, 84 S.E.2d 511, 515 (1954) and Swift
& Co. v. City of Newport News, 105 Va. 108, 114-15, 52 S.E.
821, 824 (1906)). As we explained, “such an action is not a
tort action; rather, it is a contract action and, therefore,
is not barred by the doctrine of sovereign immunity.” Bell
Atlantic-Virginia, Inc. v. Arlington County, 254 Va. 60, 62,
486 S.E.2d 297, 298 (1997) (citing Jenkins v. County of
Shenandoah, 246 Va. 467, 470, 436 S.E.2d 607, 609 (1993) and
Burns, 218 Va. at 627, 238 S.E.2d at 825); see also Wiecking
v. Allied Medical Supply Corp., 239 Va. 548, 553, 391 S.E.2d
258, 261 (1990) (“The sovereign is as liable for its
contractual debts as any citizen would be, and that
liability may be enforced by suit in the appropriate circuit
court.”).
In contrast, we held in Robb that Article XI, Section 1
of the Virginia Constitution is not self-executing. 228 Va.
at 683, 324 S.E.2d at 677. That constitutional provision
states:
14
§ 1. Natural resources and historical sites of
the Commonwealth
To the end that the people have clean air, pure
water, and the use and enjoyment for recreation
of adequate public lands, waters, and other
natural resources, it shall be the policy of the
Commonwealth to conserve, develop, and utilize
its natural resources, its public lands, and its
historical sites and buildings. Further, it shall
be the Commonwealth's policy to protect its
atmosphere, lands, and waters from pollution,
impairment, or destruction, for the benefit,
enjoyment, and general welfare of the people of
the Commonwealth.
Va. Const. art. XI, § 1. There, the plaintiff sought to
enjoin the Governor of Virginia and the Virginia Department
of General Services from demolishing certain state-owned
buildings. Id. at 680, 324 S.E.2d at 675. In reaching the
conclusion that Article XI, Section 1 is not self-executing,
the Court pointed out that the provision’s language “invites
crucial questions of both substance and procedure,” such as
whether “the policy appl[ies] only to the State and to state-
owned sites, or does it extend to private developers and to
privately-owned sites[; w]ho has standing to enforce the
policy[; and whether] the remedy [is] solely administrative,
solely judicial, or a mixture of the two?” Id. at 682, 324
S.E.2d at 676-77. Because that constitutional provision is
not self-executing, the Court reversed the decree of the
trial court enjoining the defendants from taking certain
15
actions and dismissed the bill of complaint. Id. at 683, 324
S.E.2d at 677.
None of the constitutional provisions at issue in this
case invite such questions of substance and procedure.
Article I, Section 5 and Article III, Section 1 are the
separation of powers provisions cited by the Plaintiffs.
Article I, Section 5 is contained in the Bill of Rights, and
such constitutional provisions are generally considered to
be self-executing. Robb, 228 Va. at 681, 324 S.E.2d at 676.
Furthermore, no additional legislation is needed to carry
into effect the clear mandate contained in Article I,
Section 5. See Woodward, 104 Va. at 61, 51 S.E. at 194.
Article III, Section 1, which provides that the
“legislative, executive, and judicial departments shall be
separate and distinct,” not only reiterates the mandate
found in Article 1, Section 5, but also expressly adds the
prohibition “that none [of the departments can] exercise the
powers properly belonging to the others, nor any person
exercise the power of more than one of them at the same
time.” Va. Const. art. III, § 1. While Article III,
Section 1 is not found in the Bill of Rights, it is of a
negative character and specifically prohibits certain
conduct. See Robb, 228 Va. at 681-82, 324 S.E.2d at 676.
16
Thus, we conclude that Article I, Section 5 and Article III,
Section 1 are self-executing.
Article IV, Section 1, unlike the previous provisions
discussed, is neither contained in the Bill of Rights nor
cast in a negative character. However, it does provide a
clear rule that the General Assembly, consisting of a House
of Delegates and a Senate, shall be vested with the
legislative power of the Commonwealth. This constitutional
provision needs no further legislation to make it operative.
Gill, 197 Va. at 129, 87 S.E.2d at 810. It provides a
sufficient rule by which the duty imposed may be enforced.
Robb, 228 Va. at 682, 324 S.E.2d at 676. It would be an
anomaly to say that a constitutional provision vesting the
legislative power in the General Assembly is not self-
executing and thus requires further legislation to make it
operative. Therefore, we also conclude that Article IV,
Section 1 is self-executing. See Marshall v. Northern Va.
Transp. Auth., 275 Va. 419, 435-36, 657 S.E.2d 71, 80 (2008)
(applying provisions of Article IV, Section 1).
“The characterization of a constitutional provision as
‘self-executing’ or not, is generally only a conclusion as to
whether the constitutional intent is to provide a presently
effective rule, by means of which the right given may be
enjoyed and protected and the duties imposed may be enforced
17
without supplementary legislation.” Jacobs v. City of
Bunkie, 737 So.2d 14, 18 (La. 1999) (quoting Student Gov’t
Ass’n v. Board of Supervisors, 264 So.2d 916, 919 (La.
1972)). The fact that a self-executing constitutional
provision is operative without the need for supplemental
legislation means that the provision is enforceable in a
common law action. Compare Kitchen, 275 Va. at 392, 657
S.E.2d at 140 (holding that a self-executing provision
“permits a property owner to enforce his constitutional right
to just compensation in a common law action”), with Robb, 228
Va. at 683, 324 S.E.2d at 677 (dismissing a bill of complaint
because a constitutional provision was not self-executing).
The constitutional provisions at issue in this case place
duties and restrictions upon the Commonwealth itself and its
departments. To give full force and effect to the provisions
as self-executing, a person with standing must be able to
enforce them through actions against the Commonwealth. Thus,
we further hold that the self-executing constitutional
provisions before us waive the Commonwealth’s sovereign
immunity.
F. Conclusion
We hold that Article I, Section 5; Article III, Section
1; and Article IV, Section 1 are self-executing
constitutional provisions and thereby waive the
18
Commonwealth’s sovereign immunity. Because the Plaintiffs
do not challenge the circuit court’s finding that the
doctrine of sovereign immunity applies to the MWAA, our
conclusion applies only to the Commonwealth Defendants.
Thus, we will reverse the judgment of the circuit court with
regard to the Commonwealth Defendants and remand this case
for further proceedings.
Affirmed in part,
reversed in part,
and remanded.
19